PHAM MY HUNG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1887/2020

[2026] HKCFI 933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1887 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 6 August 2019”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 2 September 2020 and filed on 22 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 6 August 2019 without identifying the decision-maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 6 August 2019 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 March 2017 (“the Director’s Decision”). It is clear that the date referred to in Form 86 was the date of the Board’s Decision, and hence the subject matter of the Leave Application should be the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001887_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’ application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

4.  The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86, but spelt their names wrong.

5.  In fact, only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

6.  As mentioned, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.

7.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 6 August 2019”.

Late application

8.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

9.  However, the applicant filed his Form 86 on 22 September 2020, which was more than 13 months after the Board’s Decision (made on 6 August 2019). The applicant was hence late for more than 10 months in making the Leave Application.

10.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

11.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.

12.  A delay of more than 10 months is very substantial. More importantly, there is no merits in the Leave Application as discussed below.

13.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

14.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

15.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

16.  In sum, the applicant claimed for non-refoulement protection because if refouled to Vietnam, he feared being harmed or killed by his creditor named NGUYEN Van Luong due to his inability to repay a debt of 500 million Vietnamese Dong.

Disposal on paper

17.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Thus, the Leave Application is dealt with on paper.

Grounds for judicial review

18.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

19.  The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 22 September 2020, the applicant merely stated that he could not go back to his country as his life was in danger over there.

Discussion

20.  First of all, the applicant’s alleged danger from his creditor had already been assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

21.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

22.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

23.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 19 March 2019. The applicant was thus given the chance to present his case to the Board in person. However, the applicant was absent at the hearing and did not provide any reasons for his absence in writing by the deadline that he was allowed to do so. The Board was satisfied that the notice of hearing had been duly served on the applicant. Hence, the Board decided to proceed to assess the applicant’s case based on all the written materials before it.

24.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found that on the applicant’s evidence, he was only slapped on one occasion when the creditor came to ask for repayment. He tripped when he was running away from the creditor on another occasion but recovered in full afterwards. The applicant claimed that the creditor had on an occasion come with people armed with swords. However, he was not injured and could run away. The Board found the creditor could have seriously hurt or even killed him, but he did not do so. The Board found the acts and threats of the creditors were merely means to pressurize the applicant to repay the loan. The alleged ill-treatment he received did not attain a minimum level of severity.

25.  The Board found the risks that the applicant claimed to face only arose from his inability to repay a loan, which was a personal matter. There was no evidence of state acquiescence. The ill-treatment inflicted upon him was not for a Convention reason.

26.  The Board found the applicant’s claim that the police in Vietnam would not help him to be bare assertions without supporting evidence. Contrary to the applicant’s claim in this regard, the Board found from extensive country of origin information (“COI”) that despite the existence of corruption and criticisms as to the effectiveness of the law enforcement, the Vietnamese government was taking practical steps to combat corruption, improve police efficiency and to crack down illegal loan sharks. The Board thus found that state protection would be available to the applicant upon his return should he need it.

27.  As to the viability of internal relocation, the Board found the applicant’s claim that he could easily be located by his creditor far-fetched and not supported by evidence. There was no evidence that the creditor was sufficiently resourceful to locate him countrywide. The Board found that it would be viable and not unduly harsh for the applicant to relocate to other areas in Vietnam to avoid his creditor.

28.  Thus, the Board concluded that the applicant had failed to establish that he would face a real risk of being subjected to ill-treatment, torture, arbitrary deprivation of life or persecution upon refoulement.

29.  The finding of facts, including assessment of evidence, COI and risk of harm was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

30.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

31.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

32.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence

Form CALL-1